Regulation, Prohibition, and Litigation: Joe Biden's Busy Lame-Duck Period
Why should an unpopular president shape so much policy on his way out?
The Biden administration has come to an end not with a bang, nor a whimper—but with a frenzied rush of new regulations, lawsuits, and executive orders.
Some are likely to be quickly reversed when the Trump presidency begins next week. Many others will not.
The latest in that string of last-second executive actions was a lawsuit filed by the Federal Trade Commission (FTC) on Wednesday against Deere & Company, the manufacturer of John Deere tractors and other farm equipment. The lawsuit alleges that Deere has used proprietary software to ensure that only the company's authorized dealers can conduct repairs on the computer systems that run much of modern farm equipment.
The lawsuit is a potentially big showdown for the so-called right-to-repair movement, which is seeking laws and court opinions that prevent companies from using those sorts of restrictive software components to force consumers into using certain repair services. Despite much of the FTC's track record over the past four years, this might actually be a useful and consumer-friendly development.
But the process matters, and rushing this lawsuit out the door in the final days of the Biden administration is likely to harm its chances of succeeding. As Deere noted in a statement, the lawsuit seems to misrepresent some basic facts about what repair services customers can do on their own. In a dissenting statement, FTC Commissioner Andrew Ferguson (who will become chairman of the agency after Donald Trump is sworn in) condemned the effort as "the result of brazen partisanship…taken in haste to beat President Trump into office."
In other words, this looks more like a performative final flourish by outgoing FTC Chairwoman Lina Khan rather than a serious attempt at improving consumer welfare.
You might say the same thing about many of the Biden administration's lame-duck activities—and there have been a lot of them.
In just the past 15 days, President Joe Biden or his appointees have blocked the sale of U.S. Steel, forbidden oil drilling in a huge swath of coastal waters, banned mining on federal lands in California, and restricted American companies' sales of advanced computer chips. Each of those actions will directly (in the case of U.S. Steel) or indirectly harm American businesses by limiting how and where they engage in commerce.
Biden's team has also meddled with prices and personal finances. The Consumer Financial Protection Bureau (CFPB) issued new rules forbidding medical debt from being taken into account when credit scores are calculated. Biden ordered another round of student loan forgiveness, and he signed a bill boosting Social Security payments to some retired public workers.
The CFPB's maneuver is simply a price control that will make credit scores a less reliable signal in the marketplace, while the other two actions are direct handouts to groups (college grads, retirees getting pensions) that by and large don't need the help.
Health regulators have been busy too. The surgeon general issued a call for new warning labels on alcohol, based on an unscientific reading of the data. The Food and Drug Administration (FDA), meanwhile, banned a common dye used in processed foods and outlined plans to require lower nicotine levels in cigarettes.
In fairness, this flurry of activity has resulted in a few positive policy changes too. After years of abuse, the Drug Enforcement Administration (DEA) is finally changing its airport policies to limit forfeitures of travelers' legal property. And the FDA gave a long-awaited thumbs-up to Zyn nicotine patches, which are a healthier way to get that buzz than sucking on a cigarette.
For obvious reasons, it's difficult to compare Biden's busy lame-duck session with other outgoing administrations in any sort of objective way.
In part, that's because we haven't seen a transition like this one in quite some time. Most recent presidents have served two terms, which provides a much longer runway for the completion of ongoing administrative and regulatory projects. When President Barack Obama won reelection in 2012, everyone working for him knew they had exactly four more years ahead.
The only one-term presidency in recent history was Donald Trump's, and the final weeks of that administration included a light policymaking schedule punctuated by a very different kind of chaos: a riot, an impeachment, and so on. Even so, Trump and his underlings found the time to order a half-dozen executions, appoint a clutch of new judges, and pardon some of the president's friends.
Biden's lame-duck period seems different because the various bureaucrats and regulators only learned in early November that their work would have to get wrapped up in a matter of weeks, rather than years. That's probably the best explanation for the rushed manner of, say, the FTC's recent action against Deere & Company.
Neil Chilson, a former lawyer for the FTC who was at the commission during the transition from the Obama administration to the first Trump one, underlined the unusual nature of the Deere lawsuit in a post on X. During that earlier transition, "the majority pushed through settlements at the very end. Some were controversial. But I get why they wanted to close out cases," Chilson wrote. "But slamming out the filing of NEW LAWSUIT on a partisan 3-2 vote in the waning days is silly."
The same could be said about a bunch of other things Biden has done this month. Why should an unpopular president, heading into retirement on the back of an electoral defeat by his hand-picked successor, get to decide the fate of U.S. Steel, prohibit future energy projects, make credit scores less reliable, or hand out special favors to Democratic constituencies like college grads and public workers?
This all probably points to the need to shorten the time between Election Day and the inauguration of a new president. That period has already been shortened once: In 1933, the 20th Amendment moved Inauguration Day from March 4 to January 20, in large part because the then-four-month lame-duck period was seen as being far too long (especially once modern means of communication and travel over long distances were developed).
These days, there's no good reason why a new president shouldn't be inaugurated the day after Congress counts the electoral votes. That would trim two weeks off the lame-duck period—but don't hold your breath for any changes.
Instead, we're left with the bizarre sight of an outgoing administration, one rejected by the American people, issuing costly regulations and filing "silly" lawsuits while the clock (eventually) runs out on its time in power.
